December 1, 2002
New Light on Jogger's Rape Calls Evidence Into Question
By JIM DWYER and KEVIN FLYNN

We cut her clothes off with a knife, said one boy. That was my first rape, said another. It was fun, said a third.

Once, those raw words scarred the city. Recorded in April 1989, they narrated the maiming and near-murder of a jogger in Central Park, recounted the rampage of teenagers who went into the park to rob and beat people, and ultimately provided the blunt power of confessions that sent five of those boys to prison for gang rape.

More than a decade later, the official view of those words has taken a sharp turn. The Manhattan district attorney, Robert M. Morgenthau, has signaled that he is likely to join defense lawyers on Thursday in asking a judge to vacate the convictions built on those words. Mr. Morgenthau declined to be interviewed last week; he said in October that he had been surprised by evidence that emerged in the last year. "I didn't expect this," he said.

The new evidence includes a claim by Matias Reyes, a convicted murderer and serial rapist, that he alone attacked the jogger. DNA tests not only proved his involvement, but also showed that physical evidence had been wrongly used at two trials in 1990 to implicate the five teenagers.

While significant, the presence of Mr. Reyes in the assault and the collapse of the physical evidence did not clear the original defendants, Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana and Kharey Wise.

Those developments did, however, prompt prosecutors to reconsider the original case, conducting scores of additional scientific tests and interviewing two of the convicted boys, dozens of witnesses, former detectives and others.

At the core of the original case, prosecutors found two issues that call into question the involvement of those five teenagers in the attack: the confessions that convinced two juries of their guilt, and the sequence of events that night.

A reconstruction of the events in the park has bared a significant conflict, one that was hinted at but not explored in depth at the trials: at the time the jogger was believed to have been attacked, the evidence showed that the jogger was knocked down at one place and dragged or chased nearly 300 feet.

The fifth teenager convicted of the rape, Mr. Salaam, did not make a videotaped statement, nor did he sign a written summary or notes, but a detective said Mr. Salaam told him that the attack on the jogger happened before the assaults at the reservoir, effectively placing it before 9:30.

Mr. Wise said a knife was plunged into the victim repeatedly, although the prosecution's medical expert testified that he found no wounds from any sharp object.

On the other crimes, the teenagers' accounts are broadly consistent with the versions offered by the victims. Even more telling, a few of the incidents described in the confessions — attacks on runners or bicyclists who got away — had not yet been reported to the police when the teenagers mentioned them.

Eventually, the strengths of the confessions, combined with physical evidence of the hairs, which seemed to show contact between the suspects and the jogger, convinced two juries that the confessions were essentially true: the five teenagers had been part of the assault. Nothing else reasonably explained what had happened to the victim.

Now, the emergence of Mr. Reyes provides an alternative reality — that he raped the woman, a fact corroborated by DNA tests, and that he did it alone, an assertion that has not been proven or disproven.

To date, only Mr. Reyes is linked to the crime by any evidence beyond words, putting pressure on the reliability of the teenagers' confessions and how they were obtained.

On that critical point, the documentary record is silent. The video camera was not turned on until the detectives had finished other, unrecorded interrogations, generally after the suspects had been in custody for seven hours or more. As a result, the debates over what happened during those hours have amounted to swearing contests between the defendants and the detectives.

Through their questions, the defense lawyers tried to raise doubts that the statements had been made voluntarily, a requirement of New York law. Did the detectives throw chairs? Did they tell Raymond Santana that he claimed not to have touched the jogger because he was homosexual? Did they promise that the boys would be better off as witnesses than defendants? Or did they, as most of the detectives testified, merely ask what happened?

Coercion, under the law, can be psychological or physical, but the line between good, aggressive police work and illegal bullying does not form a clear boundary that can be simply applied to all the ways one person can push another to answer a question. In every instance, the legality of the Central Park statements — witnessed by parents for three of the five suspects, after readings of the Miranda warning — was upheld by the trial judge and through the appellate process.

Even among detectives, though, there was considerable disagreement about what happened during the interviews, as explained in "Unequal Verdicts," an authoritative account of the trials by Timothy Sullivan, an editor for Court TV.

A day after the rape, Mr. McCray, for instance, was interviewed by two detectives, Carlos Gonzalez and Harry Hilderbrandt. Under questioning by Michael Joseph, the lawyer for Mr. McCray, the detectives told stories that differed in several key details, the trial record shows.

Detective Hilderbrandt said Mr. McCray did not admit to penetrating the victim; Detective Gonzalez said he did. Detective Hilderbrandt said the suspect had not cried; Detective Gonzalez said he had. For much of the interview, Mr. McCray had said that he knew nothing about the rape. Once his mother left the room he discussed the rape — although he placed it by the tennis courts, nearly half a mile south of where it had taken place.

Why had his mother left the room? Detective Hilderbrandt testified that she left at the suggestion of his stepfather, who remained; Detective Gonzalez said it was at the suggestion of the detectives.

Finally, in Detective Hilderbrandt's account, the detectives wrote out Mr. McCray's statement only after the mother returned. Detective Gonzalez testified that the statement was completed before she was brought back.

Many investigators still see a powerful logic in the teenagers' confessions. The teenagers were in the same area of the park as the jogger. About 37 boys were interviewed, and about 30 detectives were involved. To police officials reconsidering the case, such a throng rules out a coordinated plan to script the statements.

While it is true that many detectives were involved, a much smaller group of detectives obtained the confessions. One, John Hartigan, took three of the four incriminating statements before they were recorded.

Another point being considered by the investigators is what standard of precision should be applied to the confessions. Mistaken details are common even in reliable confessions from people whose guilt is thoroughly corroborated.

To the defense, the mistakes made by their clients reflect the limited information the detectives had so early in the case to feed to their suspects, whether purposely or not. "The police did not know the time when it happened," argued Colin Moore, who represented Mr. Wise. "So they got it screwed up."

Under the law, parents are an important barrier to coercion of minors. In three cases, the parents were in the room while the videotapes were made. The two exceptions were boys thought to be past 16, the age when a parent is usually required: Mr. Wise, who was 16, and Mr. Salaam, who was 15, but had a transit pass showing his age as 16. Mr. Salaam's questioning was not videotaped because his mother arrived and, after an encounter with Ms. Fairstein, of the Sex Crimes Unit, called for a lawyer.

While the parents of the other three were present for the videotapes, they apparently were absent during key moments of the interrogations. Mr. Richardson's mother fell ill after being in the station house for 11 hours, and she left him in the custody of his sister. It was then that he incriminated himself.

Mr. Santana was questioned for three hours in the presence of his grandmother, and later his father, denying any involvement in the rape. At some point, his father and grandmother left the station house, and by Detective Hartigan's account, the teenager asked if he could speak alone to the investigator. Then, the detective said, Mr. Santana essentially confessed to the rape. The detective testified, "I never asked him questions as to what he did." Later, Mr. Santana made the same admissions on camera, with his father in the room.

Mr. Santana was interviewed again in June and described the assault on one of the joggers at the reservoir, but made no mention of the rape. Asked about it, Mr. Santana said he had been tricked by Detective Hartigan and another detective, Humberto Arroyo.

"Hartigan told me the others admitted raping the woman and said I was there and that if I didn't admit it, he couldn't help me," a police report quotes Mr. Santana as saying. "So I made up the story you see on the tape to satisfy them."

Over the last decade, DNA testing has cleared 27 people nationwide who were convicted of crimes based on some form of confession, according to records kept by the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University. In another category, Prof. Steven Drizin at the Northwestern University School of Law and Prof. Richard Leo at the University of California at Irvine have identified 130 people who falsely confessed but were cleared before trial.

One legal scholar, Paul Cassell, argues that most verified false confessions come from vulnerable segments of the population, such as people with mental disabilities.

At the teenagers' trials, defense lawyers tried without success to introduce records of psychological examinations and test scores of Mr. McCray and Mr. Wise. Mr. McCray had an I.Q. of 87, and in the ninth grade was reading at a fourth-grade level. Mr. Wise, at age 16, was said to have an I.Q. of 73 and a second-grade reading level. In two separate video statements, Mr. Wise described aspects of the rape, with a roster of aggressors that shifted, sometimes from phrase to phrase. He made bizarre statements, saying that the group had attacked a blue van, which was carrying police officers, and that later one jogger had retaliated against the group by beating up half of the teenagers. There was no evidence that such incidents occurred.

"What that illustrates very clearly is a kid who is prepared to say almost anything that the district attorney wants to hear," Mr. Moore, the lawyer for Mr. Wise, had argued.

nvestigators were not the only ones who heard what sounded like admissions from Mr. Wise. When he was being kept at Rikers Island, he telephoned friends. One, Melody Jackson, testified that she had asked him about the assault on the jogger. "He said: `Mel, I didn't have sex with her. The only thing I did was touch her legs,' " Ms. Jackson testified. Earlier this year, investigators visited her again, according to a police report, and she stuck by her story.

So, too, did the convicted teenagers: in prison, records show, at least four of them declined to accept responsibility for the rape, costing them extra time in prison.

Many people close to the case believe that the legal verdict is bound to be overturned in the coming days. If Mr. Reyes's statements and the recent DNA tests do not exonerate the original five defendants, they qualify as "newly discovered evidence" for which verdicts may be vacated under the New York State penal code.

Since all the defendants have finished their sentences for the gang rape and the other muggings, and because the statute of limitations has run out on Mr. Reyes's involvement, it is unlikely that any new criminal trials will be held on charges arising from that night in Central Park — even if prosecutors determine that the confessions are a reliable guide to what happened on an April night in 1989.

Copyright The New York Times Company.

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